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Possibility of Unsuitable COVID-19 PPE & Decontamination Products Triggering Product Liability Claims

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Published Date: August 4, 2020

The whole world continues to battle with the Covid-19 pandemic and there still is no end in sight. As cases continue to surge, the need for more personal protective equipment (PPE) also rises. As the demand for PPE and decontamination products rise, there is a possibility of rushed, fake or unsuitable PPE being sold – knowingly and unknowingly. With job losses on the increase, there is even a greater chance of people selling PPE of which the quality or suitability has not been tested. The most pertinent product in this regard would be sanitisers because its production involves technical expertise. There already have been talks of unsuitable sanitisers being made available for use in public spaces and, also, allegations of “fake sanitisers” being supplied to schools in the Eastern Cape province. As one would imagine, the use of such products has a potential of badly damaging the person’s hands and, depending on the person’s skin, may spread to other parts of the body. This may have severe consequences for the person concerned who may need medical intervention (which could be costly); may develop more serious health complications; who may be unable to work; who may, at worst, lose their job. In a case where it is a child who has used the unsuitable product, the consequences may even be dire. These are but some of the possible consequences. It therefore becomes necessary to look at whether the persons concerned may have any legal protection in such cases.

The position relating to such claims is regulated by both the common law (law of contract and delict) as well as legislation– the Consumer Protection Act 68 of 2008 (CPA). Much attention will be given to the latter as it has remedied the shortcomings of the common law. It is important to note at the outset that, to succeed with this claim, the claimant must prove that the product is defective, and the use of the said product has caused them harm. Harm may relate to health and/or finances. If the claimant can prove all these elements, then they will succeed with the claim. As one would imagine, for a person who does not possess know-how with regard to the production of sanitisers, proving fault (either negligence or intention) on the part of producer is almost impossible. One way of overcoming this hurdle is to involve an expert – this will have cost implications and not everyone will be inclined to involve a costly expert without any guarantee that they will succeed with their claim. Claiming under law of contract presents its own challenges as the claimant has to prove the existence of a contract between the parties. This can be challenging to prove in the context of the use of sanitisers in the public space – for example, when a person uses hand sanitiser placed at the entrance to a mall To prove a legally binding contract in that instance is not that simple. It is for these reasons that we have to consider the provisions of the CPA, instead.

As stated above, the CPA has remedied the aforementioned shortcomings, to an extent, and section 61 deals with liability for harm caused by defective goods. It is worth noting that in terms of the CPA, the claimant is not required to prove negligence on the part of the wrongdoer – this is known as “strict product liability”. Section 61 provides that the producer, importer, distributor or retailer of any goods is liable for any harm caused wholly or as a consequence of supplying any unsafe goods; a product failure, defect or hazard in any goods; or inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer as the case may be.

If someone suffered harm as a result of an unsafe, hazardous or defective product, they merely need to prove that the product caused the harm. This harm can include death, injury, illness or even economic loss. However, one would still need to prove that the relevant product caused the harm. This might be difficult in some cases, for example a consumer might visit numerous stores in a shopping Centre and hand sanitiser could be applied at each of those stores. The challenge will be to prove which product (sanitiser) caused the harm in such a situation. There are also exceptions to the CPA’s product liability provisions, for example where a business supplied a product to someone and the product was not defective at the time of the sale or where it would be unreasonable to expect the distributor or retailer to have discovered the defect, hazard or other characteristic, having regard to their role in marketing of goods to consumers.

It is crucial to note that the producer, importer, distributor or retailer are jointly and severally liable for harm caused. This means that any party in the supply chain can be held liable. Holding any or every potential wrongdoer in the supply chain liable is to the greater advantage of the claimant. It would otherwise have been very challenging to pinpoint one specific wrongdoer.

Apart from regulating product liability, the CPA also imposes product standards on suppliers. Section 55 deals with consumers’ rights to safe, good quality goods. Every producer, importer, distributor or seller is deemed to guarantee that their product complies with these standards and that the product is safe for use, of good quality and reasonably suited for the purpose for which they are intended. There are remedies provided for by the Act for the consumer in case of breach of these provisions.

Based on the above, it is imperative for all relevant stakeholders from producers to the retailers to ensure that their PPE and disinfection products are of the legally required standard failing which there may be serious legal implications. As much as appropriate quality products come at a price, product liability litigation can also be costly for suppliers. Therefore it is crucial that good quality goods are supplied. In order to minimise risks and the possibility of claims, businesses should ensure that they purchase products from reputable suppliers. They should also verify the quality of the products and ensure that they conclude contracts that contain clauses that protect them in relation to product quality and safety. Sufficient product liability insurance should also be obtained.

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